Anchorage Laundry & Dry Cleaning Association, Inc.

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anchorage Laundry & Dry Cleaning Association, Inc. and Local 333, Laundry and Dry Cleaning International Union, AFL-CIO. Case 19-CA-6884 January 10, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On July 15, 1974, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent excepts to the Administrative Law Judge's findings that Respondent's refusal to bargain respecting changes in its collective-bargaining agree- ment with the Union was in violation of Section 8(a)(5) and (1) of the Act. We find merit in these exceptions. Respondent, an association made up of employers in the drycleaning business, was party to a collective- bargaining agreement with the Union effective from May 8, 1971, until February 1, 1974. Under this agreement, any party desiring to negotiate changes or modifications, or to terminate the agreement, was to notify the other party 60 days prior to the expiration date of the agreement. If such notice was not given, the agreement was to continue in effect from year to year. On Friday, November 30, the Union's business agent, Chambers, sent a registered letter to Respon- dent's president, Harris, notifying the latter that the Union was desirous of meeting with representatives of Respondent prior to February 1, 1974, for the purpose of "amending, supplementing, and/or modi- fying" the existing agreement. Harris received this letter on December 3, 1974, and caused copies of it to be sent to each employer-member of Respondent. Between November 30, 1974, and January 10, 1974, Chambers also advised Crawford, the general manager of Harris' drycleaning establishment, and a participant in the 1971 negotiations, that the Union would be receiving contract proposals from its International, and that it would furnish the same to I I9ONLRB651 (1971) 2 182 NLRB 819 (1970). Respondent upon receipt. On January 7, 1974, Chambers received the contract proposals and on January 10, 1974, delivered copies to Crawford who in turn caused their distribution to all employer- members of Respondent. After Harris and Respondent's secretary-treasurer, Imada, perused their copies of the proposals around January 15, 1974, Imada contacted Attorney John- stone about representing the association in negotia- tions as he had in 1971, and set up a meeting with Johnstone for January 22 in order to provide for a "consent to agency." On January 17, 1974, Johnstone informed Cham- bers by letter that he had received Chambers' letter to Harris and the contract proposals, and that he was not sure of the number of employers he would be representing in the forthcoming negotiations. When Johnstone met with the members of the Association on January 22, 1974, he advised them that the Union's notice to the Association was not given 60 days prior to the termination date of the agreement and, in his opinion, was not timely for the purpose of forestalling automatic renewal of the agreement. The Association members then adopted this advice as their formal position. On January 24, 1974, a meeting was held between the Association and the Union, at which time Johnstone informed the Union of the Association's position as to the notice. Since then, Respondent has declined to negotiate further with the Union, and its members have continued to apply the 1971-74 agreement. First, we find that the notice itself was not timely given to Respondent, not having been received by Respondent until December 3, 1973, less than 60 days from the expiration date of the contract. This late delivery was not due to factors beyond the control of the Union, as the evidence shows that Chambers mailed the notice on November 30, fully anticipating its delivery on Monday, December 3. However, despite the late receipt of notice, Res- pondent, by its action, could have waived the notice requirement, and agreed to bargain with the Union. This was found to have been done by the Adminis- trative Law Judge, with whom we disagree. In finding that Respondent's actions had fore- stalled the automatic renewal of the 1971-74 con- tract, the Administrative Law Judge rejected Res- pondent's contention that Sawyer Stores, Inc.,' is controlling, and found that General Maintenance Service Co., Inc.,2 was more analogous to the instant case. We disagree, as we believe the facts as presented in this case are more closely analogous to Sawyer Stores. 216 NLRB No. 22 ANCHORAGE LAUNDRY & DRY CLEANING In General Maintenance, the union mailed the notice on a date when it could reasonably believe the notice would be timely, and it was delayed by the post office in circumstances not attributable to the sender. Further, the union had notified General Maintenance that the notice was in the mail the day after it had deposited it. Moreover, the respondent therein never notified the union after the receipt of the notice that it considered the contract automati- cally renewed, but rather raised no objection to the delayed delivery until it utilized that argument as a defense at the Board hearing on its alleged refusal to bargain. Under those circumstances, the Board found that the notice requirement had been waived. In Sawyer Stores, the union's notice was received a number of hours late for the 60-day notice specified in the contract. There respondent was aware of the untimeliness of the notice and, after agreeing to meet with the union upon request, sought advice from the Board's Regional Office concerning its obligation to bargain. Although it did not receive an answer from the Regional Office until after it first met with the union , and it did discuss some of the union's proposals with the union representatives, it also advised the union at this meeting that it did not consider the notice timely, and suggested that this issue be resolved by the Board or the union's International . After receiving the Board's response, respondent refused the union's requests for further meetings. Under those circumstances , the Board found that respondent did not waive the 60-day notice requirement, and did not unlawfully refuse to meet to bargain with the union over a new contract. We find the factual situation in the instant case to be more analogous to that in Sawyer Stores. Although Respondent herein did not advise the Union that its notice was untimely either at the time of its receipt or following receipt of the Union's contract proposals, and Johnstone arranged a negoti- ating meeting with the Union, it did advise the Union of its position concerning the untimeliness of the notice at their first and only meeting. Under these circumstances, we do not believe that Respon- dent's actions constituted a waiver of the 60-day notice requirement . Since the notice was untimely, the contract was automatically renewed on February I, 1974. Therefore, Respondent was under no obligation to bargain concerning changes in that contract. Accordingly, as we have found Respondent did not unlawfully refuse to bargain, we will order that the complaint herein be dismissed in its entirety. ORDER 115 Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the complaint herein be , and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Anchorage, Alaska, on April 25, 1974, based on a charge filed January 31, 1974, and a complaint issued April 3, 1974, alleging that Anchorage Laundry & Dry Cleaning Association, Inc., called Respondent, violat- ed Section 8(a)(1) and (5) of the National Labor Relations Act, as amended by refusing to bargain with Local 333, Laundry andDryCleaning International Union, AFL-CIO, called the Union. The issue is whether a collective- bargaining agreement between the parties was renewed for an extended term as, if so, no obligation to bargain existed while, if not, Respondent has intentionally refused to bargain based on an erroneous legal position. Upon the entire record in this case, including my observation of the witnesses, and upon consideration of briefs filed by the Umon and Respondent, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation, is an association of employ- ers operating retail laundry and drycleaning businesses in and around Anchorage, Alaska. Respondent was formed and exists for a purpose of representing its employer members in matters of collective bargaining and whose employer members, in the aggregate , annually derive gross revenue in excess of $500,000 and annually purchase goods valued in excess of $25,000 which originate outside the State of Alaska. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion On May 8, 1971, a collective- bargaining agreement was made and entered into between the Union and Respon- dent. Then, as now, Respondent comprised six employers including Alaska Cleaners, Inc., and Snow White Laundry 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & Cleaners, Inc. Frank W. Harris is coowner of Alaska Cleaners; Yukio Imada is coowner of Snow White and these individuals have at all times since at least May 1971 been president and secretary -treasurer of Respondent, respectively. Each party was represented by an attorney during negotiations leading to this contract ; Robert M. Goldberg, for the Union and Karl S . Johnstone, for Respondent. Article XXVIV (sic) reads: TERM OF AGREEMENT The agreement shall become effective as to all changed provisions from date of signing, except wage increases to existing classifications , which shall be retroactive to February 1, 1971. This agreement shall continue in full force and effect until February 1, 1974. Either party desiring to negotiate changes in this agreement shall give sixty (60) days written notice of proposed changes prior to the expiration date of the agreement. If no notice or modification, changes, or termination is given sixty (60) days prior to the expiration of this agreement , the same shall continue in effect from year to year. On November 30, 1973, Frances N. Chambers, business agent and financial secretary-treasurer of the Union, prepared and sent a registered letter addressed to Harris as Respondent's president. It read: This is to advise you that due to the expiration on Feb. 1, 1974 of the contract between the Laundry & Dry Cleaning Int'l Union Local # 333 and your association members: Alaska Cleaners, Inc. Snow White Laundry & Cleaners, Inc. Betty's City Laundry & Cleaners One Hour Martenizing Peacock Cleaners Coles Cleaners Local # 333 is desirous of meeting with representatives of your Association prior to Feb. 1, 1974 for the purpose of amending, supplementing, and / or modify- ing this agreement so that a contract agreement can be reached to supercede the existing agreement. Harris received this letter December 3, 1973, caused copies to be made and on December 4, 1973, sent one to each employer member of Respondent . In the period between November 30, 1973, and January 10, 1974, Chambers had several conversations with Tim Crawford, general manager of Alaska Cleaners, informing him the Union expected a contract proposal from Russell Crowell, international president, and assuring this would be furnished on receipt. With covering letter dated January 7, 1974, Crowell transmitted to Chambers a 31-page contract proposal that included an index and appendix alluding only to wages as ..an hourly increase effective February 1, 1974." Chambers duplicated this proposal and on January 10, 1974, delivered copies to Crawford who in turn promptly caused their distribution to all employer members. Harris and Imada each perused their copies , mentally deplored the breadth of proposed change, and conversed on or about January 15, 1974 "[R]elative to having Mr. Johnstone handle our negotiations ." Imada telephoned Johnstone and a meeting was scheduled in the latter's office for January 22, 1974. By letter dated January 17, 1974, Johnstone wrote Chambers to advise he was in receipt of her letter to Harris together with the union proposal and that the exact number of establishments he would represent "in the forthcoming negotiations" was yet unascertained. A "consent to agency" was provided to, and executed by, each employer member of Respondent before or during the January 22 meeting at which Johnstone was, in fact, retained. The preliminaries of fees and authorizations over, Johnstone addressed himself to circumstances and ex- pressed his conclusion that a count of calendar days applied to the termination clause of the agreement made the Union's notice untimely for purpose of forestalling automatic renewal . The clients unanimously embraced this advice, adopting it as their formal position to be presented to the Union. Johnstone and Chambers then arranged a meeting for January 24, 1974, at the union office. Upon arriving, the employer members of Respondent caucused briefly with their attorney, reviewed their theory with him, and proceeded to discuss it with the Union after Johnstone exacted assent from Crowell that presence in such manner by Respondent's collective self would not constitute any form of waiver. Respondent has declined to negotiate further and employer members have continued to apply the 1971-74 contract since February 1, 1974. Collateral to case chronology is the fact that Crawford participated in "quite a few" of the negotiation sessions in 1971, that he first discussed the likelihood of a new contract with Chambers in October 1973, that no meeting of Respondent was held from 1971 until January 22, 1974, that Respondent's officers guilelessly anticipated renewal negotiations, that no claim of untimely notice was raised by Respondent until January 24, 1974, and that during the time prior to December 3, 1973, Harris harbored a vague understanding that a proposed new contract was in preparation. General Counsel's theory of the case is expressly confined to a waiver doctrine. The Union's theory expressly advances dual assertions that notice was timely to forestall contract renewal and Respondent 's conduct constituted a commencement of bargaining from which it could not withdraw. This disparity brings into question whether decisional rationale may address such enlarged theory of the Union, as Charging Party, which it advances without General Counsel's sanction. Standing of a Charg- ing Party was discussed extensively in Spector Freight System, Inc., 144 NLRB 1110 (1963). There the Board held that "unreasonable limitations" on examination of witness- es by the Charging Party were not prejudicial to its substantial rights. Notably, the erroneous limitations included those of rulings denying requests for examination of witnesses on matters General Counsel refused to cover. The Board concluded its disposition in the case would have been unchanged even accepting as true matters the Charging Party sought to adduce and based on extensive participation otherwise enjoyed by Charging Party includ- ing that of arguing "its position" and submitting a brief. In Tulsa General Drivers, 176 NLRB 780 (1969), the charging ANCHORAGE LAUNDRY & DRY CLEANING 117 party, an employer, advanced "a theory of complaint greatly at variance from that of the General Counsel."1 The decision adopted by the Board expressed uncertainty whether "the Charging Party has standing in a complaint proceeding so drastically to alter the complaint theory of the General Counsel," but proceeded to thoroughly discuss such theory and find it without ment as a matter of fact and law. In Parkwood IGA, et al., 201 NLRB 905 (1973), a labor organization with limited interest as to which "no significant issues of fact" existed sought remand of a consolidated complaint proceeding. The peripheral in- volvement of this labor organization was noted in denial of the motion. These cases show an inclination to accord fullest standing to a Charging Party when the thrust of its view of the case complements that of General Counsel or relates to a key interest cognizable under the Act. Here the Union initiated the claim of timely notice at the hearing, Respondent acknowledged viability of the issue, circum- stances bearing on the claim were fully litigated, and both briefing parties addressed the subject. One of the core rights ("bargain collectively") of Section 7 is at stake, and trial of this case saw the responsibility of cross-examining Respondent's witnesses yielded to the Charging Party. Overall, a unique intimacy of interest arose in this case between General Counsel and the Charging Party warrant- ing recognition of the Union's standing to have its theory of the complaint treated in fullest manner. On the facts, I conclude Respondent has committed a refusal to bargain . One of the causes is failure to appreciate distinctions inherent in the Act's statutory scheme. This first appears as Respondent's obsession with the provisions of Section 8(d). The statutory notice pattern involved there is to best assure fulfillment of collective-bargaining agreements. Absent strike action, a labor organization's conduct is not germane under Section 8(d) and such written notice as may be the subject of dispute between parties to a contract is not tested by the stringent requirements of that section . The misconception manifests specifically with reliance on Vapor Recovery Systems Company.2 In that case the Board adopted a view of the particular fact situation that warranted finding a labor organization had forestalled contract renewal by timely notice. Section 8(d) was superfluously footnoted without connection up to actual grounds for decision. Refusal to enforce the Board's order in Vapor Recovery does not affect settled doctrine under which the Board has declined to construe the notice requirements of Section 8(d)(1) to apply to, or affect the automatic renewal provisions of, an existing collective-bargaining agreement . Crowley's Milk Company, Inc., 79 NLRB 602 (1948); International Harvest- er Company, 77 NLRB 242 (1948).3 Cf. Proctor & Gamble Independent Union v. Proctor & Gamble Mfg. Co., 312 F.2d 181, 188 (C.A. 2, 1962), cert. denied 374 U.S. 830 (1963). A i In Tulsa, both General Counsel and the Charging Party urged further grounds for an unfair labor practice finding. This facet is not to be confused with the issue of the Charging Party unilaterally seeking enlargement of the complaint's main theoretical basis. 2 133 NLRB 580 ( 1961), enforcement denied 311 F.2d 782 (C.A. 9, 1962). 3 The court considered Vapor Recovery governed by Sec. 8(d) and coupled the view with reasoning based on general concepts of contract law. Although due weight is accorded the court's decision, the Board subse- second area in which issues touching on 60-day notice appear is that of the contract-bar doctrine. Koenig Brothers4 was such a case with the Board requiring strict compliance by an employer seeking contract termination as a prelude to its RM petition. Neither concept suffices to judge whether, as here, a renewal of contract has occurred. The most compelling reason to say it has not is the actual manner of notice within the context of contract language. Operative phra- seology is found in the last three sentences of article XXVIV's (XXIX) final paragraph. The first of these sentences is a simple statement of contract duration. The second is enabling language for a "written notice of proposed changes" only. The third sentence requires a reading out of the minor prepositional inadvertence "or" rather than "of." Ordinarily this would hardly bear mentioning, but that is the sole passage authorizing automatic contract renewal and the actual, unreformed language shows looseness of preparation and disharmony with its preceding sentence in which no reference to the contemplated "modification" or "termination" appears. In this realm of pure contract notice, Respondent relies on Sawyer Stores,5 a case construing the phrase "shall notify" to mean that a communication intended to forestall contract renewal must be actually received in a place physically sufficient as constructive notification to the other party. But General Maintenance, supra, a case holding contract renewal was forestalled, dealt with the same verb as found here ("is given"/"shall give") in concluding that to set notice in motion suffices where such is actually received with promptness, was expected, where no preju- dice to the recepient was shown and after conduct reflecting a waiver of defect was followed by mere afterthought objections. The conduct of Respondent's officers suggests the applicable precedent for this decision is General Mainte- nance, not Sawyer Stores. An awareness of the Union's desire to negotiate changes was present and when notice arrived it was distributed to employer members without comments A permeating reconciliation to the commence- ment of bargaining existed on the part of Respondent's chief officers as they awaited the Union's new proposal. This then reveals the parties own attitude on the question. As February 1, 1974, is excluded from a count, the 60-day period commenced as a calendar matter on December 3, 1973.7 Chambers never intended more than for notice to be received that date. December 2, 1973, fell on a Sunday, a day outside the normal business endeavors of Respon- dent's employer members (Agreement art. XV, 1.; art. XVII, 2.). To uphold Johnstone's recommendation, as rendered, would be tantamount to considering legal advice shapes past events. The contrary is true as any advice formulated must start with the significance of action or nonaction of quently reiterated its position on this aspect of Sec. 8(d) in General Maintenance Service Co, Inc, 182 NLRB 819, 822 (1970). 4 108 NLRB 304 (1954). 5 190 NLRB 651 (1971). 6 Vapor Recovery involved the express finding of "no evidence that at any time prior to its letter . the Union put Respondent on notice that it sought termination of the existing contract " 7 Carter Machine and Tool Co., 133 NLRB 247 (1961). 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the past. Buttressing this branch of the case is an evaluation of Crawford's role. Determination of agency relationship under the Act rests on apparent, not actual, authority and past participation as a member of Respon- dent's bargaining group coupled with unrepudiated func- tioning as conduit for receipt of bargaining proposals suffices to establish Crawford as Respondent's agent for limited purposes applying to waiver. Cf. Local 304, Laborers, 191 NLRB 764 (1971). Finally, the implication found in wage patterns compounds Respondent's difficulty in claiming a renewal has occurred. If so, the wage scale for drycleaning employees (art. XI) would, by its express terms, expire February 1, 1974, leaving a contractual vacuum as to this important subject. Only rejection of Respondent's defense can avoid the distortion of this contract from the standpoint of bargaining history, its particular language and telling conduct of the parties. CONCLUSIONS OF LAW 1. All production and maintenance employees em- ployed in and around Anchorage, Alaska, by members of Respondent, but excluding office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since May 8, 1971, the Union has been exclusive representative of all employees in the unit described above for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. Commencing on January 24, 1974, Respondent engaged in a continuing refusal to bargain with the Union, respecting proposed changes in the collective-bargaining agreement that had existed between the parties until expiration of its term on February 1, 1974, and through such conduct committed unfair labor practices prohibited by Section 8(a)(5) of the Act. 4. By the conduct described above, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found Respondent has engaged in certain unfair labor practices violative of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . My recommendation contemplates commencement of negotiations upon request of the Union and execution of a new contract incorporating any agreement reached as a result of such negotiations . Noting the retroactive economic features of the 1971-74 contract, I recommend no further remedial aspects bearing on negotiations or the relationship of the parties as the hiatus accountable from this proceeding is best addressed in a free bargaining process. A posting of notice will be recommended and in the interest of fully informing affected employees of their rights , I shall recommend Respondent supply each of its employer members with signed copies of the notice with a request for appropriate posting. [Recommended Order omitted from publication.]